Discussing medical negligence from a legal standpoint

The problem of medical errors is one of the most important areas in medical law. The number of medical errors, unfortunately, is growing with years. For example, in the US, the number of victims of medical errors annually varies from 40 to 87 thousand people. In this regard medical errors kill less people than AIDS. By the most conservative estimates, the economic damage caused by medical mistakes each year in the United States is equivalent to the state budget of an average European economy. Thus, in the jurisprudence more and more medical malpractice cases are started (criminal and civil ones). Medical personnel is attracted to criminal liability, and medical clinics are suffering huge losses in the form of payments as compensation for non-pecuniary damage and harm caused to a patient. But in this chain a number of other organisations is also involved – insurance companies and pharmaceutical firms. The first ones are required to pay large sums to patients and then placing recourse action of medical institutions, which can be a beginning of the end for the medical facilities. Pharmaceutical companies, in turn, can also be held liable, for example in case of delivery of substandard pharmaceuticals.

From all this it follows that it is necessary to answer two important questions. The first one: what medical error? The second question is more complicated: which medical errors entail increased responsibility for the doctor, and which ones do not imply any increased responsibilities for the doctor? Defining a medical error is not a simple task. Plenty of literature offers a point of view that if a doctor has committed a medical error, there are already grounds for bringing, for example, a physician, to criminal liability. However, this may be a fundamentally wrong approach, compounded by the fact that, as a rule, the investigator and preliminary investigator, do not delve into the intricacies of medical practice, medical ethics and do not analyse the jurisprudence of this category of cases.

The fact is that so far neither the majority of medical nor law schools teach the fundamental courses of the application of medical law. All this leads to an incorrect legal qualification of acts, so judging the case on medical errors (especially criminal) is a tricky and a complicated process. The situation is sometimes corrected in the presence of legal counsel, having proper practice, for example, in the US, the UK and Germany there are law firms, employing lawyers specialising exclusively on medical and pharmaceutical law. According to SolicitorsGuru, one of the fastest growing legal services aggregators in the UK, there are 1753 results on medical negligence solicitors – a quite modest number for the country with 64ml. population and increasingly alarming tendencies of growth in the number of new cases (+5.6% in 2013 in comparison with the previous one). As we see, keeping in mind the increasing number of court approvals (just 37% of claims resolved without any damages paid), in practice the cases where medical personnel errors are justified are not that huge in percentage ratio.

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Cassandra Nelson

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